NIGER DELTA DEVELOPMENT COMMISSION (NDDC) V. EDO STATE BOARD OF INTERNAL REVENUE

CORAM

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Lateef Adebayo Ganiyu Justice of the Court of Appeal

Asmau Ojuolape Akanbi Justice of the Court of Appeal

PARTIES

NIGER DELTA DEVELOPMENT COMMISSION (NDDC)

APPELLANTS 

EDO STATE BOARD OF INTERNAL REVENUE

RESPONDENTS 

AREA(S) OF LAW

CONSTITUTIONAL LAW, ADMINISTRATIVE LAW, TAX LAW, APPEAL, PRACTICE AND PROCEDURE, JUDICIAL POWERS, GOVERNMENT AGENCIES, STATUTORY INTERPRETATION

SUMMARY OF FACTS

The Niger Delta Development Commission (NDDC), a Federal Government Commission with an office in Edo State, was statutorily designated as an agent of the Edo State Board of Internal Revenue for the purposes of withholding and remitting taxes such as Withholding Tax (WHT), Pay-As-You-Earn (P.A.Y.E), and Development Levy. The Respondent carried out a tax audit on the Appellant for the period of 2005-2010 and established a tax liability of N131,847,529.00. On July 31, 2012, the Respondent approached the High Court of Justice, Edo State with an ex-parte application for an order to distrain the Appellant’s land, premises, and moveable goods in satisfaction of the established tax liability. The lower Court granted the order as prayed on August 3, 2012.

The Appellant filed a Motion on Notice on August 13, 2012, seeking to discharge the ex-parte order on grounds that the Court lacked jurisdiction, the order was incompetent and an abuse of judicial process, and it violated the Appellant’s right to fair hearing. The High Court, after considering all evidence, dismissed the Appellant’s application to set aside the ex-parte order on October 30, 2012. Dissatisfied with the ruling, the Appellant filed a Notice of Appeal on April 16, 2014, which was later amended with leave of Court.

HELD

1.The appeal was struck out.

2.The Court held that the Notice of Appeal filed on April 16, 2014, against the decision of the lower Court delivered on August 3, 2012, was incurably defective and incompetent, having been filed approximately two years after the decision without first seeking and obtaining leave for extension of time.

3.The Court further held that an incompetent Notice of Appeal is incapable of amendment, and the Amended Notice of Appeal filed on March 29, 2021, was a nullity.

4.The Court also observed that an appeal against an ex-parte order runs contrary to Section 14(1) of the Court of Appeal Act, which expressly prohibits appeals from ex-parte orders.

ISSUES

1.Whether the State High Court (Lower Court) had the jurisdiction to entertain the Respondent’s application to distrain the properties of the Appellant.?

2.Whether in light of the express provisions of Section 26 of the Niger Delta Development Commission Act, 2004 and Section 74(2) of the Personal Income Tax Act, 2011 as amended, the Respondent was precluded from distraining the properties of the Appellant to satisfy any alleged or proven tax liability.?

3.Whether the Learned trial Judge was right in granting the Respondent’s Ex-parte application for the enforcement of the alleged tax liability without affording the appellant the opportunity to be heard.?

RATIONES DECIDENDI

NOTICE OF APPEAL – THE IMPORTANCE OF A NOTICE OF APPEAL AS THE FOUNDATION OF AN APPEAL:

“At an appellate Court, a Notice of Appeal is the originating process, it is the substructure of an appeal, the base, foundation and lifeline of an appeal, without which the appeal is immediately aborted. It is the Notice of Appeal that invokes the jurisdiction of any appellate Court and confers on it the requisite jurisdiction to hear any form of appeal before it.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

NOTICE OF APPEAL – EFFECT OF A DEFECTIVE NOTICE OF APPEAL:

“A Notice of Appeal is a determinant factor as to whether an appeal is competent enough to be heard or not. Where it is found to be defective, it robs the Court of the requisite jurisdiction to entertain the appeal, thereby rendering the entire appeal defective.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

TIME FOR APPEAL – REQUIREMENT TO FILE WITHIN PRESCRIBED TIME OR SEEK EXTENSION:

“The law is settled that an appeal against the interlocutory decision of a lower Court or its substantive decision must be done within the prescribed time provided for by relevant laws/rules guiding the procedure of the Court. Where there is any failure to do that, the Appellant is availed the opportunity to file an application for an extension of time with cogent reasons explaining why the appeal is being filed after the effluxion of time.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

DEFECTIVE NOTICE OF APPEAL – INCOMPETENCE OF NOTICE OF APPEAL FILED OUT OF TIME:

“A Notice of Appeal filed outside the time stipulated by law is incompetent, however, this defect can be corrected with an application for extension of time which must be sought for and granted by this Court before the appeal can be competent.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

EXTENSION OF TIME – REQUIREMENT TO ATTACH ORDER GRANTING EXTENSION TO NOTICE OF APPEAL:

“Every application for an enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged, a copy of the Order granting such enlargement shall be annexed to the Notice of Appeal.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

JUDICIAL NOTICE – COURT’S INABILITY TO SEARCH FOR EVIDENCE NOT PROVIDED BY PARTIES:

“The Court cannot go into the recess of its chambers to do the work of any party in a matter pending before it, in this case, the Appellant.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

AMENDMENT OF NOTICE OF APPEAL – INABILITY TO AMEND A DEFECTIVE NOTICE OF APPEAL:

“The law is trite that a mere grant of leave to amend Notice of Appeal by filing additional grounds of appeal does not cure a defective and incompetent appeal.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

AMENDMENT OF DEFECTIVE PROCESS – THE PRINCIPLE THAT SOMETHING CANNOT BE PLACED ON NOTHING:

“It is trite that you cannot put something (an amended Notice of Appeal in the instant appeal) on nothing (a defective Notice of Appeal in the instant appeal) and expect it to stand. The law is also settled that an incompetent process is incapable of amendment because, in the eyes of the law, it is non-existent. Therefore, what does not exist cannot be amended, as exemplified by the latin maxim ‘ex nihilo nihil fit’.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

PRELIMINARY OBJECTION – EFFECT OF SUCCESSFUL PRELIMINARY OBJECTION ON CONSIDERATION OF APPEAL MERITS:

“The law is trite that where a Preliminary Objection to an appeal succeeds, as in this case, it will be unnecessary to go further and consider the further arguments on the merits of the appeal, as that will amount to an exercise in futility.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

APPEALS FROM EX-PARTE ORDERS – PROHIBITION AGAINST APPEALS FROM EX-PARTE ORDERS:

“It is pertinent to place it on record that, an act of lodging an appeal before this Court against the pronouncement of trial Court, on an Ex-parte application as it is the case in the instant appeal, runs contrary to the clear provision of Section 14(1) of the Court of Appeal Act.” – Per LATEEF ADEBAYO GANIYU, J.C.A

LITERAL INTERPRETATION – APPLICATION OF LITERAL RULE TO CLEAR STATUTORY PROVISIONS:

“The provision of Section 14(1) of the Court of Appeal Act under consideration having been drafted in a clear and plain English language, same should be interpreted literally. If it is so interpreted, one will be left with no option than to hold that, under no given circumstance should an appeal lie to this Court from an Order Ex-parte.” – Per LATEEF ADEBAYO GANIYU, J.C.A.

STATUTORY COMPLIANCE – EFFECT OF ACTIONS IN CONTRAVENTION OF STATUTORY PROVISIONS:

“The law is that where a statute provides for the manner of doing a particular thing only the manner specified by the statute will suffice. Any act done in contravention of the manner provided is a nullity.” – Per LATEEF ADEBAYO GANIYU, J.C.A.

CONSTITUTIONAL REQUIREMENTS – NEED FOR LEAVE TO APPEAL:

“Section 242 of the Constitution of the Federal Republic of Nigeria (1999) (as amended) is to the effect that an Appellant shall first seek and obtain the leave of either the trial Court or that of this Court before the Notice of Appeal can be competent. Failure to satisfy this provision of the Constitution, means that the originating process i.e Notice of Appeal cannot stand.” – Per ASMAU OJUOLAPE AKANBI, J.C.A.

CASES CITED

STATUTES REFERRED TO

• Constitution of the Federal Republic of Nigeria 1999 (as amended)

• Court of Appeal Act, LFN, 2004

• Court of Appeal Rules, 2021

• Niger Delta Development Commission Act, 2004

• Personal Income Tax Act, 2011 (as amended)

• Bendel State High Court (Civil Procedure) Rules 1988

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